As I lawyer, I’ve obviously had some interest in the Elena Kagan confirmation hearings that have been going on this week. While the posturing is old and tiring, the one thing that was most saddening was the disrespect for former Justice Thurgood Marshall. At many points in the proceedings, it appeared more like Marshall was in the chair instead of Kagan. Time and time again (35 times to be exact), senators, including Texas’s John Cornyn, injected Marshall’s name in the proceedings, never using it in a flattering manner.
I was offended by it. Marshall was a legal giant. He was a respected jurist, protecting the side of freedom. For example, in the Peters v Kiff decision, he recognized the importance of the right to trial by jury when he held that a white criminal defendant could challenge the exclusion of black jurors. And in Sullivan v. Georgia, he wrote for a unanimous court in upholding First Amendment rights.
But more than a respected jurist, Justice Marshall was a respected lawyer and hero of the civil rights movement. This morning’s Austin American Statesman had an opinion piece from Stephanie Jones that said it better than I ever could:
Far from being the out-0f-the-mainstream caricature you seek to create, Marshall deserves your unyielding gratitude and respect.
As general counsel for the NAACP, he thoughtfully laid the groundwork for change. He and a cadre of brilliant lawyers, black and white, spent nearly two decades paving the way for the Supreme Court’s unanimous ruling in 1954 that “separate but equal” was antithetical to our constitutional principles. Far from activists, they were protectors of the Constitution. Unlike many of his detractors, past and present, Marshall showed the utmost respect for the Constitution, digging it out of the trash heap on which Plessy and its progeny had tossed it and helping the nation to begin to heal.
He taught us all what it means to love our country enough to work to make it a little better, a little stronger, and a little closer to what it’s supposed to be. That’s not activism. That’s patriotism.
Senator Cornyn, one of the main guilty parties during the confirmation hearing, should know that history better than most, being from Texas. As too few remember, Austin and the University of Texas School of Law played an important part in that jurisprudence that paved the way for sweeping civil rights reform.
In February of 1946, Heman Sweatt, a graduate of Wiley College (ironically, in Marshall, Texas) applied for admission to the University of Texas School of Law. The school (and my alma mater) denied him admission on the grounds that the Texas State Constitution prohibited integrated education. At the time, there weren’t any law schools in Texas that would admit African-Americans.
In May of 1946, Sweatt challenged the law and sued T.S. Painter, the president of UT. In order to give the state time to create a law school for African-Americans, the trial judge continued the case for six months. When the case finally went forward, Thurgood Marshall had the honor of arguing the case of Sweatt v. Painter in the 126th Judicial District Court of Travis County, in our current courthouse. After the trial, the trial judge upheld the university’s policy and the denial of admission to Sweatt. The decision was upheld by the Court of Appeals, and the Texas Supreme Court denied the writ of error.
Sweatt and the NAACP appealed the decision to the United States Supreme Court, where Marshall helped present Sweatt’s case. In a unanimous decision, the Supreme Court held that the two law schools were not equal and ordered the University of Texas to admit Hemann Sweatt.
The Sweatt v Painter decision was then a linchpin in the Supreme Court’s 1954 decision of Brown v. Board of Education that overturned the notion that discrimination was okay as long as minorities were provided “separate but equal” opportunities.
It seems to me that the timing of this uproar couldn’t be better. If you’re like me, when we think of the 4th of July and freedom, we think of our founding fathers. But freedom didn’t end there (or even today). There have been a number of important giants throughout our 200+ years that have continued the fight for freedom — presidents, soldiers, preachers, and even lawyers like Thurgood Marshall.
As we celebrate our freedom this weekend, I hope we’ll fondly remember all of them instead of trying to disparage them.
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